By the terms of this will, the appellant is appointed executor, and no duties are imposed upon him as executor beyond the duty of paying debts and settling the estate. He is not appointed executor and as such executor required to act as trustee for any person; but, after his duties as executor are performed, the remainder of the estate is bequeathed and devised to him in trust for the use and benefit of certain parties named in the will. It therefore appears from the will that the testator intended to give a distinct and independent character to the trustee thus named, and to impose upon him duties and *400powers in no manner connected with his duties as executor. Attorney General v. Barbour, 121 Mass. 568, 574, and cases cited. In Prior v. Talbot, 10 Cush. 1, the same person was appointed executor and trustee, but gave bond only as executor; and it was said that, if he wished to close his account as executor and open a new account as trustee, he must give bond in the capacity of trustee. See also Dorr v. Wainwright, 13 Pick. 328.
In the ease at bar, it is to be presumed that the appellant had given bond as executor; but he has given no bond as trustee, and now contends that he is not required to give such a bond, that the two offices are merged in him, that there was no vacancy, and that the appointment of White as trustee was irregular and void.
We can have no doubt that the judge of probate had the power, and, on a proper and seasonable application, that it was his duty, to appoint a trustee under this will; and this is the only question before us. There is no report of the facts upon which we can determine that the power was not properly exercised in this case; but it sufficiently appears from the record that the will was admitted to probate in 1869, and that in 1878 the appellant had not taken upon himself the trust, or given bond as trustee, according to the provisions of law. Gen. Sts. e. 100, §§ 1-4. It is therefore to be assumed that the judge of probate found that the time had arrived for the appointment of a trustee; and that there was a necessity for the appointment of a person other than the appellant, either on the ground that the appellant refused to give bond as trustee, or, by reason of his neglect to give bond, could properly be considered to have declined the trust. § 4. Decree affirmed.